229 Wis. 526 | Wis. | 1938
By the judgment appealed from the plaintiff was awarded a recovery from the defendant for medical services and hospitalization rendered by the plaintiff as a physician in the treatment and care of Harold Morris. In passing upon the issues on this appeal, it suffices to note the following matters. Morris was injured on March 27, 1937, while doing farm work for the defendant, but it was doubtful whether the Workmen’s Compensation Act was applicable so1 as to require the defendant to' provide medical services, etc., for Morris. He went to his sister’s home and Dr. Wheeler, who was called to treat him) was to call again the-next morning.
In a special verdict the jury found (1) that defehdant on March 28, 1937, requested the plaintiff to render such medical treatment and hospitalization as was necessary tO' properly treat Morris’ injury; but (2) that at that time and immediately following that request the defendant did not state to the plaintiff that he would pay him for such medical treatment and hospitalization. Each of the parties moved for judgment on the verdict. The court granted plaintiff’s motion for judgment and, in connection therewith, filed the following additional findings and conclusions of law:
“That the circumstances, including the acts and conduct of the defendant were sufficient to show an intention on the part of the defendant to1 pay for the services and hospitalization . . . and were SO’ understood by the plaintiff and the defendant ; that the plaintiff gave exclusive credit to' the defendant for the services and hospitalization so rendered; that said services and hospitalization were reasonably worth the sum of $206.50; and, as a conclusion of law, that there was an implied contract, whereby the defendant was liable to the plaintiff for [$206.50] the medical services and hospitalization rendered. ...”
In seeking a reversal of the judgment, the defendant contends that in the absence of an express contract he cannot be held liable for medical services rendered at his request by the plaintiff to Morris to whom the defendant was not legally bound to furnish such services. It is true that the general rule is that the law does not raise ¿n implied promise on the part of a person who requests a physician tO' render services to another, unless the relation of such person to' the patient is such as puts him under a legal obligation to provide medical attention for the patient. 48 C. J. p. 1163, § 185; 48 C. J. p. 1169, § 199; 21 R. C. L. p. 412, § 55. However, there is an exception to that general rule, and it does not control if
In applying that exception in the case at bar, the trial court rightly concluded,—
“This is not a case of a physician being called in an emergency, and there is nothing in the evidence to show that the defendant was acting as the agent of or as a messenger for the said Morris, and I think there can be no question but that the plaintiff understood from all the circumstances and the acts and conduct of the defendant that the defendant was to pay him for his services, as he charged defendant on his books for all his services, and I must find that the plaintiff did understand that the defendant was to pay him for his services.
“My- conclusion is that even if the defendant did not in exact words tell plaintiff he would pay him for his services, that, under the circumstances shown and the acts and conduct of the defendant in connection with the employment of plaintiff, facts are established from which a promise by defendant to pay plaintiff for his services must be inferred.”
However, the defendant contends that the case was tried and submitted for a special verdict upon the theory or basis
“It was a misuse of sec. 2858m, Stats., to submit to the jury the cause upon one theory and then dispose of it upon another, referring to sec. 2858m for assistance. That section was not intended as an instrumentality for any such use.” See also Mullen v. Larson-Morgan Co. 212 Wis. 52, 249 N. W. 67.
The contentions that the question of implied contract was not in the case under the pleadings and evidence, and that the case was tried and submitted for a special verdict solely upon the theory or basis of an express contract, cannot be sustained. The complaint as filed was to recover solely on an implied contract. Upon defendant’s demurrer ore tenus, he argued that plaintiff could not recover in the absence of alleging and proving an express contract. Neither the plaintiff nor the court acquiesced in that argument, but,’ at the latter’s suggestion the plaintiff consented to add, after the alie-
“When some controverted matter of fact not brought to the attention of the trial court but essential to sustain the judgment is omitted from the verdict, such matter of fact shall be deemed determined by the court in conformity with its judgment and the failure to request a finding by the jury on such matter shall be deemed a waiver of jury trial pro tanto.” Sec. 270.28, Stats.; Lefebvre v. Autoist Mut. Ins. Co. 205 Wis. 115, 236 N. W. 684; Schumacher v. Carl G. Neumann D. & I. Co. 206 Wis. 220, 239 N. W. 459; Patter*533 son v. Edgerton Sand & Gravel Co. 227 Wis. 11, 277 N. W. 636.
It follows that the court was warranted in entering the judgment under review, and that there is no substantial reason why there should be a new trial, even if the defendant had applied therefor in the trial court.
By the Court. — Judgment affirmed.